Changes in legal publishing

by Micah on February 17, 2005

Last week, a dozen of the top American law journals announced their commitment to reducing the length of law review articles. The Joint Statement concerning this policy is available here. A number of journals have already adopted policies to implement the goals behind this statement. The so-called Virginia Experiment (see the link on Short-Article Policy), which began a year ago, sets a presumptive word limit at 20,000 words and effectively caps articles at 30,000 words. Harvard Law Review has recently adopted similar language, with a 25,000 word preference and a 35,000 word limit. These policies will have serious implications for what is published at Virginia and Harvard. Far less constraining, but nevertheless significant, are policies adopted by Columbia Law Review and the University of Pennsylvania Law Review, both of which have set presumptive word caps at approx. 35,000 words. Other journals will probably adopt similar policies in the near future.

From the perspective of academics in non-legal disciplines, these words caps may seem absurdly generous. Most peer-review journals won’t accept articles over 10,000 words. And, to be clear, these limits are ceilings. Most law reviews regularly publish “essays”—really just normal length articles—that are far below these numbers.

One would think that this is all relatively uncontroversial and rather long overdue. And there has been some positive feedback from legal bloggers. Orin Kerr quotes the Joint Statement rather approvingly, and Larry Solum gives it a characteristic very interesting!

Reactions elsewhere have been more critical. At the Conglomerate, Victor Fleischer (UCLA Law) argues that law review articles have to be long because student editors aren’t educated enough to understand them without lengthy introductions. This view is echoed by Stephen Bainbridge (here) and also Solum (here).

A few responses:

First, it is obvious that law students are not competent to evaluate certain types of articles. Many law professors who lack specialization in the relevant fields would be equally incompetent. But that can’t explain why law review articles average more than 30,000 words. Even if you write a 10,000 word introduction (the length of the introductory chapter for my doctoral dissertation), that leaves you with 20-30,000 words to make an argument. That’s two or three times the length of articles published in other fields.

Second, it doesn’t take 10,000 words to situate an article. Most articles, including technical pieces, just don’t need that kind of set-up. What’s more, a lengthy introduction won’t be of much use to an editor in evaluating the contribution of the article. And editors know that. They consult with faculty on articles that appear well-written but that they don’t fully understand.

Third, if an article is very technical, then it probably doesn’t belong in a general law review. There are specialized journals, some of which are even peer reviewed, that are more appropriate venues for publication.

Another canard regarding article length: student editors balloon articles with footnotes. This may have been true in the past, and I’m willing to assign some of the blame to student editors who are footnote happy. At this point, though, faculty should hold editors to word length policies by resisting the addition of notes where they aren’t necessary. If anything, the Joint Statement should provided additional leverage on this front. That’s assuming, however, that students are primarily responsible for ridiculously long footnotes. And I’m increasingly skeptical about that. I’ve spent the last year watching editors at Virginia attempt to cut footnotes (especially those with massively redundant citations). Their efforts have met with strong resistance from some authors. Once you’ve invested in so much work researching an article, and once you’ve written it up, it’s hard to let things go. I’m sure there is enough blame here to go around, but, as I’ve argued before explanations for the extraordinary length of law review articles are not confined to the predilections of student editors.

The Joint Statement should go a long way toward debunking the idea that student editors prefer more “substantial” articles. It’s just not true. We would much rather publish shorter pieces that make their points and move on. There is a change of thinking that has happened about all this. It has been taking place for a few years now. The Joint Statement reflects that change, as do the policies of the journals mentioned above. A lot of deliberation went into that announcement. It isn’t easy to coordinate between the leading journals of a dozen of the leading law schools. That they were able to come together on this issue should be some indication of how pervasive the problem is and how resolute the journal editors are in meeting it.

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As someone coming to law from a background in reading philosophy articles, I was shocked and dismayed to start reading law review pieces, even ones in legal philosophy. To my mind there was a huge waste of space in nearly everything I’ve read. This is due to a number of factors- a largely superficial literature review, along w/ long strings of foot-notes to whole texts which are not useful to anyone. (Saying ,”see, for example, Rawls, Theory of Justice” just isn’t that useful). The blue-book style of citation is also a problem- it leads to lots and lots of footnotes of a sort that are less useful than they might be (“Rawls, supra note 14, pp. 36” What was cited in note 14? I can’t remember and now must look back if I’m to see.) Allowing parenthetical cites or some other method for this sort of thing would help a lot. Finally, requiring food-notes for bits of common knowlege also needless adds to the length. It’s only a small stretch to talk of notes for claims like, “Things dropped from trees fall to the ground”n31– n31 Newton, _Principia Mathematica_ p. 98. This should just be eliminated. But, this sort of thing is the style the prevails all over, so I suppose it will be hard to get rid of.

Having served on an undistinguished southern law journal, I can attest that we were specifically instructed to make sure that *every* sentence had at least one footnote. Writing our comments–same rule.

Possibly our second-rate status made us even more self-conscious about wanting to appear to have articles no less clotted with footnotes than those in the 1st-tier law journals.

Not the main issue here, I know, but I would note, in response to Matt’s comment, that legal footnotes of the “Posner, supra note 14” variety are a heck of a lot more useful than the footnotes frequently found in history and other humanities, which read “Posner, op. cit.” so that you have to read back through all the prior footnotes to find the opus that was previously cited.

I’ve been reading some (very good) law review articles by Dan Hunter and others, and I was struck by the inordinately long digressions, loads of unnecessary footnotes and so on. He told me the editors demanded this kind of thing, as a substitute for actual quality , which they weren’t well equipped to detect.

While law review articles do tend to be bloated, we are seeing the opposite problem in international relations. As article lengths get shorter, there is less room to engage in truly novel work. Moreover, in qualitative work you tend to get the worst of both worlds – sketchy theoretical development followed by sketchy case studies.

One note on whether graduate students are equipped to judge articles: in computer science, it’s fairly common practice to have student reviewers for conferences (which play much the same role in CS that journals do in other fields.) Admittedly, usually it’s third year Ph.D. students and up, but that’s not so far from third year law students. I would be surprised if this practice only occurs in CS.

I’m massively troubled by the legal footnoting practice, because it seems to establish a precedent that you don’t need to read or understand something to cite it; just to know that something sort of like your point is mentioned in it. I am assembling a small collection of citations to Richard Roll’s 1984 paper on orange juice futures and will publish it at some point.